In August, the U.S. Department of Justice served SpaceX CEO Elon Musk with a lawsuit, alleging his company is guilty of employment discrimination for refusing to hire refugees and asylum seekers.

Between September 2018 and May 2022, SpaceX hired no refugees and only one individual who said they were an asylee, according to Fox Business.

SpaceX “routinely discouraged asylees and refugees from applying and refused to hire or consider them, because of their citizenship status, in violation of the Immigration and Nationality Act (INA),” the DOJ claimed in its filing.

The lawsuit pointed to Elon Musk posting on X, formerly Twitter, and explaining he was bound by law to hire only people who have green cards, per the International Traffic in Arms Regulations (ITAR).

“US law requires at least a green card to be hired at SpaceX, as rockets are considered advanced weapons technology,” he wrote in June 2020.

This, too, was part of the violation, said Assistant Attorney General of the Department of Justice’s Civil Rights Division Kristen Clarke: “Our investigation found that SpaceX recruiters and high-level officials took actions that actively discouraged asylees and refugees from seeking work opportunities at the company.”

“Through this lawsuit we will hold SpaceX accountable for its illegal employment practices and seek relief that allows asylees and refugees to fairly compete for job opportunities and contribute their talents to SpaceX’s workforce,” Clarke explained. Among other penalties, she is seeking back pay for anyone who was “deterred or denied employment at SpaceX due to the alleged discrimination.”

Elon Musk was apparently blindsided by the lawsuit.

“SpaceX was told repeatedly that hiring anyone who was not a permanent resident of the United States would violate international arms trafficking law, which would be a criminal offense,” he wrote on X. “We couldn’t even hire Canadian citizens, despite Canada being part of NORAD [North American Aerospace Defense Command]!”

Part of the question is around specific regulations, like ITAR. Counter to Musk’s statements, the DOJ says: “Despite SpaceX’s claims, ITAR and EAR [Export Administration Regulations] do not contain employment or hiring restrictions. They do not require employers to limit jobs based on citizenship or immigration status. And they do not prohibit employers from hiring asylees and refugees.”

Exactly how the legal tussle shakes out will be a matter for the courts.

However, a number of important facts are worthy of consideration as the media makes hay of the news.

Elon Musk is himself a legal immigrant from South Africa and obtained United States citizenship in 2002.

Additionally, Musk often hires foreign talent at his other companies. Approximately 25 to 30 percent of Tesla’s engineering staff are not U.S. citizens, according to the Washington Examiner.

What’s more, examples abound of jobs that are open only to U.S. citizens. Economics Professor Alex Tabarrok did some sleuthing and revealed that the Department of Justice itself—the department targeting Musk—lists U.S. citizenship as a condition of employment for many of its job listings.

“Most federal government jobs, in fact, are restricted to US citizens,” Tabarrok writes.

Musk reposted Tabarrok’s report with the caption, “DOJ needs to sue themselves!”

Moreover, Musk’s reluctance to risk ITAR violations seems justified.

“Sanctions for violating ITAR are severe and include personal criminal and civil liability for employees involved,” the Washington Examiner notes. “Even accidental ITAR violations can cost companies hundreds of millions of dollars in government contracts with NASA and the Department of Defense.”

Indeed, the Examiner adds that most companies in the defense sector have similarly cautious hiring practices to SpaceX since “the stakes for even accidental violations are just too high.”

It seems that Musk is facing a case of sued if you do, sued if you don’t.

X user Tom Mueller summed up the conundrum well: “So, if I let a non-US citizen see our rocket hardware, I go to ITAR jail, but if i don’t hire a non US citizen I get sued by DoJ.”

The tentacles of the Federal Government were all over Twitter when Jack Dorsey was in charge, as revealed in the Twitter Files and Missouri v. Biden.

But not anymore with Musk at the helm.

The Department of Justice has found a chink in Musk’s armor—not at his newly acquired social media platform but at SpaceX where he is apparently caught in a legal pretzel.

By all appearances, a man who has put billions of dollars on the line to champion free speech has been singled out for politicized prosecution, a blow aimed to hurt him most in the wallet.

Musk has cried foul. “This is yet another case of weaponization of the DOJ for political purposes,” he retorted.

A certain former president would empathize. So would other groups who have been unfairly targeted by government agencies, like when the FBI tried to link traditional Catholics to white supremacy.

What will the courts say? We’ll have to wait to find out.

—

Image credit: Public Domain